10. Compliance and Enforcement (Part 10)

• 10.1 Designations and Training
• 10.2 Compliance Promotion
  • 10.2.1 Collaboration with First Nations
  • 10.2.2 Multi-instrument Compliance Promotion
  • 10.2.3 Activities on Individual CEPA Instruments
• 10.3 Enforcement Priorities
• 10.4 Enforcement Activities
  • 10.4.1 Enforcement Statistics
  • 10.4.2 Environmental Protection Compliance Orders
  • 10.4.3 Environmental Protection Alternative Measures
• 10.5 International Enforcement Cooperation

CEPA 1999 provides enforcement officers with a wide range of powers to enforce the Act, including the powers of a peace officer. Enforcement officers can carry out inspections to verify compliance with the Act; conduct investigations of suspected violations; enter premises, open containers, examine contents and take samples; conduct tests and measurements; obtain access to information (including data stored on computers); stop and detain conveyances; search, seize and detain items related to the enforcement of the Act; secure inspection warrants to enter and inspect premises that are locked and/or abandoned or where entry has been refused; seek search warrants; and arrest offenders. CEPA 1999 analysts can enter premises when accompanied by an enforcement officer and can exercise certain inspection powers.

A wide range of enforcement measures are available to respond to alleged violations. Many are designed to achieve compliance without resorting to formal court action, including directions, tickets, prohibition orders, recall orders, detention orders for ships, and Environmental Protection Compliance Orders (EPCOs). Measures to compel a return to compliance through court action include injunctions to stop or prevent a violation and prosecutions. In addition, a return to compliance can be achieved through Environmental Protection Alternative Measures (EPAMs), a program for diverting offenders away from the formal court process.

The number of active designated persons within Environment Canada with enforcement powers under CEPA 1999 is as follows:

• 199 CEPA enforcement officers;
• 36 emergency officers from the Environmental Emergencies Program designated as CEPA enforcement officers with limited powers; and
• 180 CEPA analysts.

In the fall of 2011, a Basic Enforcement Training (BET) course produced 16 newly designated officers with full enforcement powers and 3 emergency officers with limited enforcement powers.

In 2011–2012, the Limited Powers/Analyst Designation course was delivered in 4 different regions, resulting in 43 newly designated CEPA analysts. More sessions are to be delivered in 2012–2013.

In December 2010, the bulk of the Environmental Enforcement Act (EEA) came into force, amending Environment Canada administered legislation, including CEPA 1999 and introducing the new Environmental Violations Administrative Monetary Penalties Act. Since then, the Department has updated and is continuing to update internal and external policies and procedures to meet the EEA requirements and to update and develop training accordingly. In 2011–2012, the accomplishments include:

• the update of BET and Limited Powers/Analyst Designation courses;
• the update of the CEPA 1999 online training;
• the assessment of the requirements for the Regulations Designating Regulatory Provisions for Purposes of Enforcement (Canadian Environmental Protection Act, 1999) and aggravating factors. Development and delivery to occur in 2012–2013 to meet the coming into force timelines;
• the update of the EPCO 2002 training in respect to specific provisions under CEPA 1999; final development and delivery to occur in 2012–2013.

As a result, Environment Canada is well positioned to develop and implement the requisite enforcement tools to support full implementation of the EEA.

Other accomplishments related to training on CEPA 1999 regulations in 2011–2012 include:

• the delivery of a course to 36 officers on the PCB Regulations; more deliveries to be scheduled in 2012–2013 based on demands as it is a National Enforcement Plan priority;
• the completion of learning materials and the delivery of the updated training covering the 8 fuels regulations to 44 officers, including the following:
• • Fuels Information Regulations, No. 1;
  • Gasoline Regulations;
  • Contaminated Fuel Regulations;
  • Benzene in Gasoline Regulations;
  • Sulphur in Gasoline Regulations;
  • Gasoline and Gasoline-Blend Dispensing Flow Rate Regulations;
  • Sulphur in Diesel Fuel Regulations;
  • Regulations Prescribing Circumstances for Granting Waivers Pursuant to Section 147 of the Act;
• the development of an enhanced Storage Tank Systems for Petroleum Products and Allied Petroleum Products Regulations course, based on officers' feedback, with delivery to occur in 2012–2013;
• the assessment of learning requirements and development of training on the Renewable Fuels Regulations (including recent amendments), with delivery to occur in 2012–2013;
• the continued delivery of online training on the Export and Import of Hazardous Waste and Hazardous Recyclable Material Regulations available to all enforcement officers at all times;
• the continued delivery of online training on CEPA 1999 available to all enforcement officers at all times;
• the development of the Regulations Amending the On-Road Vehicle and Engine Emission Regulations (On-Board Diagnostic Systems for Heavy-Duty Engines and Other Amendments), Marine Spark-Ignition Engine, Vessel and Off-Road Recreational Vehicle Emission Regulations, and Passenger Automobile and Light Truck Greenhouse Gas Emission Regulations.

Compliance promotion relates to the planned activities that are undertaken to increase awareness and understanding of the law and its regulations. Through these activities, information is provided on what is required to comply with the law, the benefits of compliance and the consequences of non-compliance.

In 2011–2012, Environment Canada delivered compliance promotion activities for new and existing control instruments under CEPA 1999. Multiple approaches were used to reach the regulated communities, including workshops and information sessions, email and phone call campaigns, information package and letter mail-outs. These activities were often carried out in collaboration with other federal departments, provinces and territories as well as non-governmental organizations (e.g., BC Marine Trades Association, Transport Canada, and Aboriginal Affairs and Northern Development Canada, and industry associations).

Environment Canada continued to work closely with First Nations in 2011–2012. Workshops, presentations and compliance-promotion materials were delivered to First Nations groups and individuals throughout Canada on obligations to comply with regulations under CEPA 1999. Many of these activities were organized and presented in collaboration with Aboriginal Affairs and Northern Development Canada (AANDC).

Compliance promotion to First Nations in 2011-2012 included a multi-instrument information booth and presentation at the Kitikmeot Trade Show in Cambridge Bay, Nunavut. Compliance-promotion materials were made available for a number of regulatory instruments including Storage Tank Systems for Petroleum Products and Allied Petroleum Products Regulations; Federal Halocarbon Regulations, 2003; PCB Regulations; Environmental Emergency Regulations; Volatile Organic Compound (VOC) Concentration Limits for Architectural Coatings Regulations;and Perfluorooctane Sulfonate and its Salts and Certain Other Compounds Regulations (PFOS). Presentations were made on the Federal Halocarbon Regulations, 2003 and Storage Tank Systems for Petroleum Products and Allied Petroleum Products Regulations. The Kitikmeot Trade Show was an opportunity to connect businesses, government departments, regulatory agencies and Inuit organizations from the Kitikmeot region and other communities across Nunavut.

Compliance-promotion activities were carried out in support of the Storage Tank Systems for Petroleum Products and Allied Petroleum Products Regulations. Several workshops on the requirements of the regulations were delivered to the regulated community among First Nations across Canada in collaboration with AANDC. Sessions covered the application, definitions, overview of requirements and regulatory deadlines.

Five sessions were held in the Atlantic region regarding the Federal Halocarbon Regulations, 2003, as it applies to First Nations and tenants on Aboriginal land. The information sessions were supported by mail-outs to over 200 potential regulatees and phone calls to 150 individuals. Additionally, 4 compliance promotion presentations took place in Saskatchewan, including a booth at the Little Pine First Nations Environmental Fair.

The Atlantic First Nation Housing and Infrastructure Network includes participation from Environment Canada, Aboriginal Affairs and Northern Development Canada, Health Canada, Canada Mortgage and Housing Commission, the Atlantic Policy Congress First Nation Chiefs, tribal councils, tribal political organizations, and their member communities, which now include all Atlantic First Nations: Mi'kmaq, Maliseet and Innu. The network's purpose is to facilitate interdepartmental and First Nation discussion and collaboration on a number of priority issues, including safe and secure drinking water for communities, water monitoring, improved wastewater management, all hazards emergency management, and environmental education. Environment Canada provides technical expertise on several working groups and provides leadership on priorities and directions through the Regional Director General's membership on the Senior Committee.

In 2011–2012, the network advanced the objectives of CEPA 1999 by promoting to all Atlantic First Nation communities compliance promotion activities related to the Federal Halocarbon Regulations and the Storage Tank Systems for Petroleum Products and Allied Petroleum Products Regulations and by attending the Regional Environmental Emergency Team's annual meeting. The Atlantic First Nation Housing and Infrastructure Network helps build capacity of members for environmental management on First Nation lands across Atlantic Canada.

Environment Canada organizes a number of multi-instrument workshops and information booths each year to reach regulatees who must comply with more than one regulation.

For 2011–2012, multi-instrument compliance-promotion activities covered a broad range of environmental regulations under CEPA 1999, the Fisheries Act, and the Canadian Environmental Assessment Act. In total, 18 multi-instrument workshops and information booths were organized by Environment Canada's regional offices in various locations across Canada. The workshops covered a number of CEPA 1999 regulations, including Storage Tank Systems for Petroleum Products and Allied Petroleum Products Regulations; Volatile Organic Compound (VOC) Concentration Limits for Architectural Coatings Regulations; Volatile Organic Compound (VOC) Concentration Limits for Automotive Refinishing Products Regulations; New Substances Notification Regulations; PCB Waste Export Regulations, 1996; Federal Halocarbon Regulations, 2003; Environmental Emergency Regulations; Perfluorooctane Sulfonate and its Salts and Certain Other Compounds Regulations.

These multi-instrument compliance-promotion activities provide a unique opportunity for regulatees to meet Environment Canada staff and gather key information regarding acts and regulations affecting their activities. Regulatees also benefit from the knowledge and experience of the on-site staff, the distribution of printed materials on the legislation, and the provision of resources for further inquiries.

Compliance-promotion activities on individual CEPA 1999 control instruments in 2011–2012 included the following:

Renewable Fuels Regulations – Canadian fuel producers and importers were informed of this regulation through the delivery of over 500 mail-out packages, letters and emails. Two trade show booth sessions presenting compliance promotion materials, and an information session were held in the Prairie and Northern Region, reaching over 160 known and potential regulatees.

Volatile Organic Compound (VOC) Concentration Limits for Architectural Coatings Regulations – Compliance promotion officers delivered information about the regulations with a focus on paints used for traffic marking. Three information sessions, five trade show booths and mail-out campaigns reached over 2000 regulatees in the traffic marking community, including municipal governments, public work professionals and airport management representatives.

Volatile Organic Compound (VOC) Concentration Limits for Automotive Refinishing Products Regulations – Compliance promotion for these regulations consisted of a publication of Q&As for the regulations, a presentation and a mail-out. The Q&As were posted on the Volatile Organic Compounds in Consumer and Commercial Products website. A presentation on the regulations was made to the Environmental Managers Association of British Columbia attended by approximately 70 participants. Compliance-promotion packages containing a cover letter, fact sheet and Q&As were mailed to some stakeholders who mentioned their interest in receiving it.

PCB Regulations and the PCB Waste Export Regulations, 1996 – Compliance promotion officers worked with Enforcement to verify and identify regulatees who are still required to report under these regulations. As a result, databases and contact information have been updated to better deliver compliance promotion. Over 9000 compliance promotion activities were delivered, including to First Nations, and regulatees were informed of these regulations and of the online reporting system available to them through Environment Canada's PCB web pages.

Environmental Emergency Regulations, including Regulations Amending the Environmental Emergency Regulations; Deposit Out of the Normal Course of Events Notification Regulations; Environmental Emergency Regulations; Release and Environmental Emergency Notification Regulations – Environment Canada provided information sessions and presentations in Whitehorse, Yukon, and Kamloops and Abbotsford, British Columbia, reaching several different associations and stakeholder groups to promote the regulations. Activities also included contacting over 5500 regulatees and First Nations groups throughout Canada.

Marine Spark-Ignition Engine Vessel and Off-Road Recreational Vehicle Emission Regulations – Activities for these regulations focused on providing compliance information to regulatees through webinars and trade show information booths, including participation at the 2012 Calgary Boat and Sportsman Show in Calgary, Alberta (attended by over 18 000 people). The Department held five information sessions in Quebec and British Columbia as well as webinars. Mail-outs were also sent to approximately 6500 regulatees nationwide to keep them apprised of regulatory requirements and amendments. An important declaration process and form was developed to assist regulatees in submitting compliance information for the regulations. Technical guidance documents were developed, and communication with regulatees also included ongoing responsive compliance promotion and guidance provided via telephone, email and regular mail.

Final Notice Requiring the Preparation and Implementation of Pollution Prevention Plans in Respect of Mercury Releases from Dental Amalgam Waste – Compliance promotion officers were present at an information booth for “des Journées dentaires internationales du Québec” and for a workshop at the B.C. trades association, informing dentists, hygienists, technicians, suppliers, importers and distributers of the regulations.

Storage Tank Systems for Petroleum Products and Allied Petroleum Products Regulations – Compliance promotion officers performed over 30 site visits, presentations, training sessions, meetings and information sessions that were held across Canada, promoting the regulations to over 500 Canadians from different associations, other federal departments, First Nations, and provincial and municipal governments. A total of 1400 compliance promotion activities such as letters, phone calls, emails and faxes reached regulatees.

Phosphorus Concentration Regulations (i.e., Concentration of Phosphorus in Certain Cleaning Products Regulations) – Environment Canada used a publicity campaign to reach over 28 000 Canadians, providing information for publication in two magazines: Le Détaillant and the Retailer. Additionally, over 2000 compliance-promotion activities were undertaken throughout Canada.

Chromium Electroplating, Chromium Anodizing and Reverse Etching Regulations – Mail-outs and emails were sent to remind regulatees about upcoming deadlines for reporting under the regulations; in total, 95 reminders were sent out. Additional activities included site visits and answering inquiries regarding the regulations, resulting in over 400 compliance-promotion interactions with regulatees.

Tetrachloroethylene (Use in Dry Cleaning and Reporting Requirements) Regulations – Mail-outs of annual report packages were sent to dry cleaners, sellers, importers and recyclers of tetrachloroethylene, reaching over 1800 Canadians.

Perfluorooctane Sulfonate and its Salts and Certain Other Compounds Regulations – Aqueous film-forming foams (AFFF) that contain perfluorooctane sulfonate are used in fighting light fuel fires. Compliance promotion has been focused on delivering information about the regulations to firefighting agencies, municipal government and public work professionals who may use AFFF. This information was provided through presentations, information booths and workshops reaching over 500 participants. A questionnaire was delivered to stakeholders in Quebec to identify the stocks of AFFF in this region, assess their awareness of the regulations and ascertain their preference for means by which to distribute future information. In Yukon and British Columbia, a fact sheet was mailed to potential stakeholders, such as municipalities and airports. Overall, these actions reached approximately 1450 potential stakeholders.

Federal Halocarbon Regulations, 2003 – Seventeen information sessions, training sessions and presentations were delivered by compliance promotion officers across Canada to various groups, including federal departments, boards, agencies and Crown corporations; refrigeration technicians; First Nations and Northern Canada stakeholders. Mail-out, email and phone campaigns reached over 1600 Canadians.

Fuels Bundle, including Sulphur in Diesel Fuel Regulations; Benzene in Gasoline Regulations; Fuels Information Regulations, No. 1; Gasoline Regulations; Contaminated Fuel Regulations; Regulations Prescribing Circumstances for Granting Waivers Pursuant to Section 147 of the Act – Environment Canada distributed mail-outs and fact sheets to regulatees. Activities reached over 1600 known and potential fuel stakeholders.

New Substances Notification Regulations (Chemicals and Polymers) and the Masked Name Regulations – Environment Canada reached environmental professionals and small and medium-sized business employees through trade show booths, multi-instrument workshops and presentations, emails, and phone calls.

Gasoline and Gasoline Blend Dispensing Flow Rate Regulations – Compliance promotion for the regulations was completed through letters and emails sent to over 240 gasoline retailers in Canada.

Pollution Prevention Planning Notice for Polyurethane and other foam sector (except polystyrene) – Environment Canada conducted an information session where a presentation was made to all facilities that may be affected by the Notice, in order to promote its implementation. In addition, an information fact sheet is in the final stages of preparation.

Code of Practice for the Management of Tetrabutyltin in Canada – Compliance promotion activities included mail-outs to various stakeholders (industry and industry associations, environmental groups, Aboriginal groups, provincial and territorial governments) to inform them of the availability of the Code of Practice. In addition, Environment Canada conducted an information session where a presentation was made to all the facilities that may be affected by the Code of Practice, in order to promote its implementation.

Each year, a National Enforcement Plan describing the enforcement activities to be carried out in that fiscal year, including activities addressing non-compliance with CEPA 1999, is developed. To maximize the effectiveness of these activities, priority is given to specific regulations or instruments.

Factors that influence the identification of the priority regulations include the risk to the environment and human health represented by the regulated substance or activity, compliance issues, new and amended regulations, the nature of regulatory provisions, operational complexity and capacity, and domestic and international commitments and obligations. In 2011–2012, the National Enforcement Plan priorities included the following CEPA 1999 instruments:

• PCB Regulations;
• Federal Halocarbon Regulations, 2003;
• Tetrachloroethylene (Use in Dry Cleaning and Reporting Requirements) Regulations; and
• Storage Tank Systems for Petroleum Products and Allied Petroleum Products Regulations.

The number of inspections carried out under the enforcement plan is supplemented by a large number of inspections resulting from responses to spills, complaints, intelligence or other information. In addition, a number of regulations are identified for regional enforcement focus.

The focus placed on regulations in each region is influenced by a number of factors, including geography, the prevalence of the regulated sectors, and provincial and territorial environmental sensitivities.

Enforcement activities undertaken during 2011–2012 are summarized in four tables. Table 14 provides the number of on-site and off-site inspections for each regulation from April 1, 2011, to March 31, 2012. Table 15 provides the breakdown of investigations for each regulation on which at least one investigation occurred and/or closed from April 1, 2011, to March 31, 2012. Table 16 provides the total number of enforcement measures resulting from inspections and investigations from April 1, 2011, to March 31, 2012 for each regulation. Table 17 provides the number of prosecutions from April 1, 2011, to March 31, 2012 for each regulation.

Note: Only those regulations under which action was undertaken during the time period are listed in this table.

• Tickets, written warnings, written directions, injunctions, ministerial orders and Environmental Protection Compliance Orders (EPCOs) and Environmental Protection Alternative Measures (EPAMs) are tabulated at the section level of a regulation. For example, if the outcome of an inspection is the issuance of a written warning that relates to three sections of a given regulation, the number of written warnings is three.
• The number of subjects involved in EPCOs is represented by the number of regulatees involved in EPCOs, by the end date, regardless of the number of sections. For example, if one regulate was involved in an EPCO for three sections of the PCB Regulations, the number of subjects involved is one. Therefore it is possible that the data at the regulation level may not add up to the total at the legislation level.
• The number of subjects involved in EPAMs is represented by the number of regulatees who signed EPAMs by negotiated date, regardless of the number of regulations involved, therefore it is possible that the data at the regulation level may not add up to the total at the legislation level.

Environmental Protection Compliance Orders (EPCOs) are an enforcement response that may be issued to put an immediate stop to a CEPA violation, prevent a violation from occurring, or require action to be taken to correct a violation, without the use of the court system.

In 2011–2012, 71 regulatees were involved in EPCOs: 24 dry cleaners for alleged violations of the Tetrachloroethylene (Use in Dry Cleaning and Reporting Requirements) Regulations, 14 owners or operators subject to the Storage Tank Systems for Petroleum Products and Allied Petroleum Products Regulations, and 33 regulatees for alleged violations of various other regulations.

Environmental Protection Alternative Measures (EPAMs) are an alternative to court prosecution for a violation of CEPA 1999, which divert the accused away from the court process after a charge is laid. If an EPAM agreement is successfully negotiated, it is filed with the court to become a public document. The agreement must also appear in the CEPA Environmental Registry.

In June 2011, following an investigation conducted by Environment Canada, a Markham, Ontario, company negotiated an EPAM agreement, accepting responsibility for failing to take all reasonable care to ensure that the company exported hazardous waste in compliance with CEPA 1999. The agreement contains measures to be taken, including making a voluntary payment of $5,000 to the Environmental Damages Fund.

The company exported a sea container to Hong Kong in 2008. Authorities in Hong Kong inspected the container upon arrival and found that it contained lead acid batteries and cathode ray tube monitors, two items not accepted by Hong Kong under the terms of the Basel Convention on the Control of Transboundary Movements of Hazardous Waste and their Disposal. The container was returned to Canada and referred to Environment Canada for inspection. An investigation was initiated by Environment Canada and led to charges under CEPA 1999.

Enforcement-related activities are carried out under various international and domestic agreements and organizations. Under the auspices of the Commission for Environmental Cooperation's Enforcement Working Group (EWG), Environment Canada's Enforcement Branch engages in cooperative activities with its counterparts at the U.S. EPA and Mexico's Profepa and Semarnat. In 2011–2012, the EWG implemented the first steps in the two-year plan aimed at enhancing operational cooperation between the three countries by developing a protocol for exchanging sensitive enforcement information between the three countries. This supports the goal of the three countries working together to develop and implement a regional approach to intelligence-led enforcement with a specific focus on preventing the illegal movements of electronic waste, non-compliant imports, ozone-depleting substances and hazardous waste. The expected outcome over the next five years will be enhanced and more effective environmental compliance and enforcement, both domestically and as a region.

Environment Canada also actively participates in INTERPOL's Environmental Crimes working groups focused on issues such as developing institutional forensic capacity and stopping the illegal movement of electronic waste. This year, Environment Canada led the development of an INTERPOL forensics manual designed to assist developing countries in obtaining and using basic evidence collection techniques to prepare prosecution briefing materials for use in court. As well, Enforcement Branch led sessions and gave presentations in international meetings with organizations such as INTERPOL and the International Network for Environmental Compliance and Enforcement.